Monday, February 10, 2020

A Model of Constitutional Litigation

My new piece on universal injunctions has been published in Lewis & Clark Law Review. Precedent, Non-Universal Injunctions, and Judicial Departmentalism: A Model of Constitutional Litigation joins three threads that I have been writing and blogging about here--the requirement of particularized injunctions, the distinction between precedent and judgment, and a model of departmentalism in which all branches are bound by judgments but only courts are bound by judicial precedent. The result is a model of how constitutional litigation functions in fact and should function in our understanding.

Abstract after the jump.

This Article proposes a model of constitutional adjudication that offers a deeper, richer, and more accurate vision than the simple “courts strike down unconstitutional laws” narrative that pervades legal, popular, and political discourse around constitutional litigation. The model rests on five principles:

1) an actionable constitutional violation arises from the actual or threatened enforcement of an invalid law, not the existence of the law itself;

2) the remedy when a law is constitutionally invalid is for the court to halt enforcement;

3) remedies must be particularized to the parties to a case and courts should not issue “universal” or “nationwide” injunctions;

4) a judgment controls the parties to the case, while the court’s opinion creates precedent to resolve future cases; and

5) rather than judicial supremacy, federal courts operate on a model of “judicial departmentalism,” in which executive and legislative officials must abide by judgments in particular cases, but exercise independent interpretive authority as to constitutional meaning, even where those interpretations conflict with judicial understanding.

The synthesis of these five principles produces a constitutional system defined by the following features:

1) the judgment in one case declaring a law invalid prohibits enforcement of the law as to the parties to the case;

2) the challenged law remains on the books; and

3) the challenged law may be enforced against non-parties to the original case, but systemic and institutional incentives weigh against such enforcement efforts and push towards compliance with judicial understandings.

Posted by Howard Wasserman on February 10, 2020 at 07:15 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, February 08, 2020

JOTWELL: Steinman on Engstrom on Lone Pine Orders

The latest Courts Law essay comes from Adam Steinman (Alabama), reviewing Nora Freeman Engstrom, The Lessons of Lone Pine, 129 Yale L.J. 2 (2019), on the history and development of Lone Pine orders in mass-tort class actions.

Posted by Howard Wasserman on February 8, 2020 at 03:31 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, January 27, 2020

Thomas and Gorsuch on universal injunctions (Updated)

SCOTUS stayed pending appeal the injunction prohibiting enforcement of the Trump Administration's public-charge regulation, another example of the government seeking and the Court granting extraordinary relief to allow the administration to continue enforcing policies pending litigation where the lower court found the policies defective. Justice Gorsuch, joined by Justice Thomas, concurred in the stay, to take aim at universal injunctions (with citation to the work of Sam Bray and Michael Morley), properly defining them as injunctions protecting beyond parties rather than in geographic terms.

Unsurprisingly, I agree with Gorsuch's basic point against universal injunctions. I am not sure what it has to do with this case. Gorsuch would have granted this stay regardless of the injunction's scope. And I am sure he is waiting for the government to challenge a particularized Illinois injunction that (he acknowledges) remains in effect so he can stay that, as well.

Update: I wanted to come back to the question of whether the stay was proper. Given the make-up of the Court, it seems clear that, when the case comes to the Court on the merits, the majority will declare the policy valid. That aside, what about the stay? Where the district court granted an injunction, the question should be what will create more permanent and long-lasting chaos--staying the injunction (thus allowing enforcement of the underlying policy) or allowing the injunction to remain in effect (thus stopping enforcement of the underlying policy, allowing continuation of the primary conduct the regulation is designed to stop.

Today's order means the U.S. can deny status to certain people for the moment, although should the reg be declared invalid at the end of the day, those people could then reapply and be considered without the now-unlawful policy. Had the Court not stayed the injunction, people otherwise subject to the order could enter and/or gain status; if the order ultimately is declared valid, the government would have people in the U.S. or with status who otherwise should not have been permitted. It does not seem that the government could retroactively apply the regulation to remove presence or status already granted under the old rules. So as abhorrent as I find the policy, it seems a stay was appropriate. Where am I going wrong?

Posted by Howard Wasserman on January 27, 2020 at 01:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Saturday, January 25, 2020

Judge Easterbrook does judicial departmentalism

People are talking about Judge Easterbrook's opinion for the Seventh Circuit in Baez-Sanchez v. Barr, taking the BIA to task for not following the court's instructions on remand. Easterbrook is outraged about executive conduct that "beggars belief.' The court has "never before encountered defiance of a remand order,and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails."

Easterbrook then says the following:

A judicial decision does not require the Executive Branch to abandon its views about what the law provides, for the doctrine of offensive non-mutual issue preclusion does not apply to the United States. United States v. Mendoza, 464 U.S. 154 (1984). The Attorney General, the Secretary, and the Board are free to maintain, in some other case, that our decision is mistakenthough it has been followed elsewhere, see Meridor v. Attorney General, 891 F.3d 1302, 1307 & n.8 (11th Cir. 2018). But they are not free to disregard our mandate in the very case making the decision. That much, at least, is well established, not only in Plaut but also in many other cases. See, e.g., United States v. Stauffer Chemical Co., 464 U.S. 165 (1984). The Solicitor General did not ask the Supreme Court to review our decision, and the Department of Justice is bound by it.

Although he does not use the term, this is a nice and succinct encapsulation of judicial departmentalism: The executive can disagree with and disregard a judicial decision it regards as mistaken in some other case. But the executive cannot disregard the court's mandate in the current case when that mandate has become final and unreviewable.

Posted by Howard Wasserman on January 25, 2020 at 10:31 AM in Civil Procedure, Howard Wasserman, Immigration, Judicial Process | Permalink | Comments (6)

Friday, January 17, 2020

Two from the Fifth Circuit

From John Ross' invaluable weekly round-up of federal court of appeals decisions at Volokh Conspiracy come two from the Fifth Circuit.

• In U.S. v. Varner, a trans female prisoner moved the court to amend the judgment of confinement to reflect her new name, while asking the court to use her new name and preferred pronoun. My interest in the case is that the majority held that the motion to amend should have been denied for lack of jurisdiction, because no statutory or rule basis for amending a judgment applied. The dissent properly accuses the majority of issuing a "drive-by jurisdictional ruling;" what the majority labels a lack of jurisdiction is better understood as a failure of the petition on the merits, because Federal Rule of Criminal Procedure 36 allows for correction of clerical errors; the problem is that a clerical error is not at issue here. That is, the failure of the petition to satisfy the rule defeats the petition, but not for lack of jurisdiction.

I will not say much about the dispute between majority and dissent about the pronoun request, except that the dissent has the better reading of the request and I cannot imagine a court being more dismissive of the preferred-pronoun issue.

• In Horvath v. City of Leander, the court affirmed a grant of summary judgment against a firefighter on a claim that the city violated the First Amendment by insisting that he take a different job or wear a respirator because he claimed a religious objection to the TDAP vaccine. The majority found that the city offered a reasonable accommodation, which the plaintiff refused.

Judge Ho concurred in the judgment in part and dissented in part. Ho would affirm the judgment on the clearly established prong of qualified immunity, but then proceeds to rail against qualified immunity as unjustified by common law, the Constitution, or § 1983. He argues that the concerns justifying qualified immunity can be addressed if courts do a better job with the merits prong; the current problem "stems from misuse of the first prong of the doctrine. Simply put, courts find constitutional violations where they do not exist." If courts did a better job with the constitutional analysis, police would not be chilled or over-deterred.

But then he gives the game away about where this would take us. After all, "the Fourth Amendment does not prohibit reasonable efforts to protect law-abiding citizens from violent criminals--it forbids only unreasonable searches and seizures." Unspoken is the view that police can do whatever they believe necessary in the moment against someone they believe poses a threat to law-abiding citizens--it would be open season on anyone perceived as a threat. Unless, of course, those police officers speak rudely to a white woman who wants to pray while the officers are searching her house.

Look, I agree with Judge Ho that we should get rid of qualified immunity and let the Constitution do the work. But his opinion shows that the cross-ideological opposition to qualified immunity will give way to ideological splits on substantive rights--lots of Free Exercise violations when officers are mean t0 Christians, few Fourth Amendment violations when officers shoot African-Americans.

Posted by Howard Wasserman on January 17, 2020 at 07:00 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Thursday, January 16, 2020

Universal consent decrees

Two U Conn students who were prosecuted and sanctioned by the university for violating the school policy against "disruptive behavior" for uttering a racial slur have filed suit in the District of Connecticut, claiming the school sanctions violate the First Amendment. (H/T: Eugene Volokh). The case should be easy as a First Amendment matter--the students seem to have shouted the slur into the ether, not directed at anyone and not accompanied by any threatening conduct.

But it is procedurally interesting, potentially complicated, and seemingly wrong. After the jump.

In 1990, U. Conn. entered a consent decree in a lawsuit brought by a then-student named Nina Wu, who was sanctioned for saying "no homos" on a board on her dorm-room door. The consent decree permanently enjoined U. Conn. from enforcing a provision of its student code "against this plaintiff or any other student." This is a universal injunction, protecting the universe of U. Conn. students (or it is at least non-particularized). I would argue the court cannot and should not issue such an injunction. The completeness of Nina Wu's remedy is unaffected what might happen to do students 30 years later--that is, students who were not born at the time of the injunction. On the other hand, U. Conn. could have entered the consent decree with Wu, then voluntarily altered its conduct and declined to enforce the provision against any other student (which is what usually happens). But this case offers a third option--U. Conn. voluntarily bound itself to non-enforcement as to non-parties as a matter of an enforceable judicial order. Can a defendant do this? Can the court do it if the defendant agrees? Can a court enforce it as it would a properly scoped injunction?

The plaintiffs frame their case, at least in part, as an attempt to enforce the consent decree. They allege in ¶ 8 that they have standing to enforce the decree because of its stated scope. But then the procedural posture makes no sense--why (and how) can a plaintiff file a new lawsuit to enforce a judgment in a different action, even if in the same district and assigned (under a local related-case rule) to the same judge. It seems to me that the proper course have been to move to intervene or join as plaintiff in Wu and to move the court with jurisdiction over the injunction to enforce or modify. Filing a new lawsuit before a new judge is proper if asking for a new injunction protecting these plaintiffs as to these defendants.

Posted by Howard Wasserman on January 16, 2020 at 04:47 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, January 13, 2020

Why not just have oral argument?

Bloomberg has a story (behind paywall) Judge Alan Albright of the Western District of Texas and some of his standing orders and practices. Among them: The use of "audio briefs," recordings of briefs longer than 10 pages, which the judge listens to while driving and biking.

I am in favor of greater orality in litigation. But part of the benefit of more orality is more bench presence and more contact between the court and the advocates. This seems to provide the worst of both worlds--the looser argumentation of oral compared with written advocacy, but without the presence and contact.

Posted by Howard Wasserman on January 13, 2020 at 11:02 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Thursday, January 09, 2020

JOTWELL: Malveaux on Burbank & Farhang on rights retrenchment

The new Courts Law essay comes from Suzette Malveaux (Colorado), reviewing Stephen B. Burbank & Sean Farhang, Rights and Retrenchment in the Trump Era, 87 Ford. L. Rev. 37 (2019), a follow-up to their 2017 book on the counter-revolution against federal litigation.

Posted by Howard Wasserman on January 9, 2020 at 11:15 AM in Article Spotlight, Books, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, January 08, 2020

C.J. Roberts and the Year-End Report

At SEALS next summer, there will be a discussion group to mark fifteen years of the Roberts Court and the Court's renewed engagement in civ pro (something I wrote about at the six-year mark). For a topic, I was considering the way that Roberts has used his Year-End Reports to talk about civil procedure and the FRCP, in ways both good and bad, proper and less so.

Adam Feldman on Empirical SCOTUS looks at the particular words Roberts uses in these Reports to talk about the power and role of judges and the judiciary. Although about the judiciary broadly and not only civ pro, it offers a good starting point.

Posted by Howard Wasserman on January 8, 2020 at 11:50 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, January 06, 2020

A teaching experiment

Our new scheduling guru is trying something new this semester--teaching on consecutive days rather than alternate days. So rather than Civ Pro meeting Monday/Wednesday/Friday, it will meet Wednesday/Thursday/Friday.

I am excited to see how this works. It should be interesting to have students working and focused on just my material (or my material and material in one other class) in a few-day block. And it fits how I structure the class and syllabus by topic rather class session--we work through something in however much time it takes, even if that time cuts across multiple classes. I am anxious to see whether that works better when students return to a case or problem in 24, rather than 48, hours.

Posted by Howard Wasserman on January 6, 2020 at 10:31 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (7)

Tuesday, December 24, 2019

Constitutional small claims court

Clark Neily at the Cato Blog proposes a constitutional small-claims court for low-level constitutional violations. Neily's starting example is a cop citing a woman for disorderly conduct for saying "bitch" in public, an obvious constitutional violation, then ordering away (on the silent threat of arrest) an attorney who attempted to intervene. Neily's proposal would create a small-claims-court/traffic-court hybrid, with small-money damage awards paid from an escrow fund established by each department. Neily acknowledges the major structural departure, but says it is better than the current approach, "which is to collectively shrug our shoulders at the vast majority of relatively low-level civil-rights violations committed by cops hundreds, if not thousands, of times a day across the country."

It is an interesting idea, of a piece with other proposals to enable recovery on small violations. In my Civil Rights class, I discuss Jim Pfander's proposal to allow plaintiffs to seek only nominal damages in exchange for eliminating qualified immunity.

There are a host of details to work out, as Neily acknowledges. They begin with whether this system is in federal or state court and what that choice says about our current assumptions about the federal judiciary and civil rights. If at the state (or municipal) level, recall that municipal traffic courts have become money-making institutions for themselves, their local governments, and their police departments, creating their own constitutional violations. We might worry about recreating that system, even with the different goal of compensating citizens against governmental overreach. Finally, should it be limited to police or should it extend to other executive officials who violate rights in a small, l0w-level way, such as the staffer in the Recorder of Deeds office?

Posted by Howard Wasserman on December 24, 2019 at 11:27 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Friday, November 29, 2019

More state action and private vendettas

I wrote awhile back about a case in which police officers took private action against a citizen (trashing his car) based on a personal vendetta resulting from a professional dispute (the citizen filed a departmental complaint about them). The Seventh Circuit found no state action in an analogous case. A citizen shouted at a police officer while he was making an arrest and criticized the officer (and perhaps threatened his family) on Facebook, prompting the officer to file a criminal complaint with a fellow officer, prompting that officer to arrest the citizen. The court held that, although the original interaction came when the officer was on the job, he acted as a private citizen in filing a criminal complaint with another officer, who then pursued those charges.

The Seventh Circuit's analysis would reject the potential claim in the earlier case. I imagine the court would say the officers acted as private citizens in trashing the guy's car and it is not enough that the dispute traces to official police conduct.

Posted by Howard Wasserman on November 29, 2019 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, November 25, 2019

Organizing Fed Courts

My Fed Courts class ended this week. For the second straight year, I ran out of time and was unable to reach the last section, on  Congressional Control over the Federal Courts; this covers Klein and Plaut, as well as the fun theoretical stuff on jurisdiction-stripping, court-packing, etc.

After the jump is the broad strokes of my syllabus. I would welcome thoughts of what I can or should cut to give me the two days I would need to include this final section. Or, alternatively, is the congressional control stuff the least important and it falling by the wayside, while unfortunate, is less problematic than if I skipped something else.

By way of background, I teach Fed Courts as (in the words of one former student) "the love child of Con Law and Civ Pro." It is a federal-court litigation course, interspersed with some constitutional and judicial theory.

Introduction: Broad strokes of the text of Art. III and the broad structure of the federal judicial and judicial decisionmaking.

SCOTUS Jurisdiction: Original; § 1257; § 1254

Ct App Jurisdiction

District Court Jurisdiction: Federal Question (including Grable); Complete Preemption; ATS

Non-Article III Jurisdiction: Magistrates, Bankruptcy, CAAF

11th Am

Justiciability: Standing/Ripeness/Mootness

Abstention:

I added Non-Article III a few years ago. It takes about 1-1 1/2 days, so it could go and leave most of the additional time I need. But I thought (and think) is is too important, given how much more decisionmaking is done by non-Article III actors. I also used to spend less time on 11th Amendment, which I cover in Civil Rights. But I have no guarantee students will take that course and I believed they needed fuller coverage.

Just to clarify: We get to the basics of congressional control--the difference between the source of SCOTUS power as opposed to lower-court power, for example. We do not get to things like the Hart-Wechsler debate, the stripping debates of the 1980s, court-packing, and the various recent  proposals to change SCOTUS structure--in other words, the fun, theoretical, and not likely to happen stuff.

Thoughts?

Posted by Howard Wasserman on November 25, 2019 at 11:44 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (3)

Sunday, November 24, 2019

A pleading question

The Comcast argument from two weeks ago featured competing hypotheticals designed to show proximate cause under § 1981, but instead showed the problem of pleading oneself out of court. Following some comments on my prior post, I have been thinking about both (which I would like to use in Civ Pro next semester).

Hypo # 1: African-American not hired by law firm; receives letter saying "You're African American and we don't hire non-lawyers."

Option # 1: Complaint quotes the "You're African-American" language of letter but nothing else. I think the Complaint passes muster, although the defendant may be able to offer the full letter on a 12(b)(6), which would change the analysis.

Option # 2: Complaint quotes entire letter (or attaches letter as written instrument). Complaint fails unless plaintiff alleges fact rebutting the non-lawyer piece of the letter. We would say P has pleaded himself out of court, but including a fact that undermines his claim.

Hypo # 2: Hotel refuses to rent room to African-American, telling him "We don't rent to African-Americans and we are out of rooms."

Option # 1: Complaint only quotes the first statement. Again, I think the complaint passes muster.

Option # 2: Complaint quotes both statements. I think the Complaint would fail for the same reason as the first case. A commenter suggests otherwise, because it may be that the hotel was lying about there being no rooms. But must the plaintiff allege a fact rebutting the statement that there are no rooms, at least on information and belief, to show that it might be false? Just as the lawyer-applicant must allege facts rebutting non-lawyerness as the basis for not hiring? If the "reasonable alternative explanation" language of Iqbal does any work, this would be it--the complaint provided the alternative explanation. Or does drawing all reasonable inferences for the plaintiff allow for the inference that the hotel is lying about the adverse fact?

Posted by Howard Wasserman on November 24, 2019 at 11:15 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, November 17, 2019

Pleading yourself out of court and other thoughts on Comcast

Some thoughts after listening to arguments in Comcast, where the question was the causation standard ("but-for" or "motivating factor") for a § 1981 action.

• I did not understand the  argument from respondent (represented by Erwin Chemerinsky) that the standard could be motivating factor at pleading and but-for at trial or summary judgment. A motion under 12(b)(6) is supposed to ask whether, if everything the plaintiff alleges is true, the plaintiff can prevail--under whatever the controlling legal standard will be. It makes no sense--especially given the spin in Twiqbal--to allow a pleading to pass scrutiny when its facts could not meet the applicable standard.

The argument and questions seemed to conflate this with the distinct, and unremarkable, proposition that a plaintiff need not plead all the evidence she will have or use to prove her or claim. Or that a plaintiff should only be expected to plead what she can know or learn pre-discovery (an idea to which Justices Gorsuch and Kavanaugh, as well as Kagan, seemed receptive). Or that a plaintiff can prove her case with different evidence and different rationales than she pleads it.

• There were competing hypotheticals that illustrate the idea of a plaintiff pleading herself out of court, but that do not necessarily grapple with the problem here. The first, proposed by ASG Morgan Ratner, involves a law-firm applicant who receives a rejection letter saying "you're African-American and we're not hiring you because you never went to law school;" Ratner argued there would be no plausible claim of discrimination, because it was not plausible that the law-firm plaintiff could have been hired in any event. The second, proposed by Chemerinsky, is a plaintiff told by a hotel that it will not give him a room because no rooms are available and the hotel does rent to African-Americans; he argues that those allegations should be sufficient to survive a motion to dismiss.

The problem is that the hypos do not reflect how pleading works, because the fundamental nature of pleading and 12(b)(6) motions is that they are one-sided--only the facts alleged by the plaintiff are considered and the plaintiff can limit her pleading to those true facts (or facts she believes supportable on reasonable inquiry) that support her case. There is no obligation to plead adverse facts. And, as several justices and Chemerinsky reiterated during the argument, no need to anticipate and rebut the contrary facts the defendant may present.

So how would a plaintiff plead each of those cases? I imagine the rejected lawyer would plead that he was denied a job and the rejection letter mentioned his being African-American; the hotel guest would plead that they told him they do not rent rooms to African-Americans. A motion to dismiss would be denied, because those facts, if true and without more, could plausibly show that race was a but-for cause.

Both complaints are incomplete, as they withhold facts favorable to the defendant. But the defendant cannot introduce those facts at 12(b)(6). It must wait for summary judgment. Or maybe it could answer, add the additional facts (not a lawyer or no room at the inn), then move under 12(c) for judgment on the pleadings. It could prevail at either stage, because there is a non-discriminatory reason for its action and the result would have been the same--a point Chemerinsky seems to concede.

Had either plaintiff pleaded complete information (or had the law-firm plaintiff attached the rejection letter to the complaint), I think both complaints should be dismissed, because the plaintiff had "pleaded himself out of court." A defendant could move under 12(b)(6) and say "look at the four corners of the complaint, it shows the plaintiff cannot state a claim because it is not plausible that discrimination, as opposed to his not being a lawyer, caused his non-hiring, because the facts in the complaint show he was not hired because he is not a lawyer." Which, again, is as it should be. If the plaintiff offers and does not contest facts of a legitimate non-discriminatory reason for the action, his claim should fail.

Here is a different, interesting procedural question: Suppose the law-firm plaintiff just pleaded that the rejection letter contained racially motivated language. Could the defendant on a 12(b)(6) present the letter to give full context to what the plaintiff was told and still have it be treated as a 12(b)(6) (rather than converted to summary judgment)? The letter is not part of the four corners of the complaint. But the complaint references the letter, so the letter itself provides context. The Twombly Court did this with the magazine feature on Dick Notebaert in which Notebaert said competition was a way to turn a quick buck, but that didn't make it right.

• There was some discussion of Summers v. Tice (the two-hunters case from torts) for the idea that a claim can succeed when two plausible causes are presented showing liability, either of which was a but-for cause. But Summers does not seem the appropriate analogue here. The issue in Summers was that either of two people engaged in unlawful actions that might have caused the plaintiff's death--because either could have unlawfully caused the death, either could be liable, so both could be liable (and we will leave it them to sort out liability between them). The issue in the hypos is that one person engaged in two actions that caused the non-hiring or non-rental--one of those acts was lawful, the other was unlawful. So in Summers, the result (death) was the same and someone must be responsible because it resulted from one of two unlawful acts. In the hypos, the result (not hired/not given a room) was the same, but it resulted from one of two acts, one of which was lawful.

• Breyer and Gorsuch pushed that a plaintiff can satisfy 8(a)(2) by pleading mental state on information and belief. Gorsuch and Kavanaugh also suggested that discrimination cases should not be easily dismissed at the pleading stage. Such comments suggest a potential opinion loosening pleading standards. I wait to see if it is something that might become part of the Civ Pro course.

Posted by Howard Wasserman on November 17, 2019 at 11:50 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Saturday, November 16, 2019

Inexplicable decisions, in one post

The unifying themes of these decisions is that I heard about them yesterday and I do not understand.

• The Tenth Circuit held that officials of the University of New Mexico School of Medicine enjoyed qualified immunity from First Amendment claims arising from the school sanctioning a med student for "unprofessional" speech, because it was not clearly established that a professional school could not punish speech in the name of instilling professional values.

The court jumped to the second, "clearly established" prong of the qualified-immunity analysis, as it has discretion to do; but the court went beyond that, insisting that merits-first should be the exception, because of constitutional avoidance. But this seems problematic, generally and in this case. Generally, it will produce fewer opportunities for courts to develop constitutional law. In this case, skipping the merits no sense because the plaintiff also sought injunctive and declaratory relief, which is not subject to immunity and requires consideration of the constitutional merits. The court never explains what happened to those claims or why they do not compel the court to reach the constitutional question.

The case also reveals how courts, despite rhetoric to the contrary, demand factual overlap. As the court put it, the plaintiff “failed to identify a case where [a medical school administrator] acting under similar circumstances as [the defendants in this case] was held to have violated the [First] Amendment.” A" patchwork of cases connected by broad legal principles" is insufficient.

Also, note that the court ignored one factor weighing in favor of reaching the merits--the presence of amicus briefs from several First Amendment advocacy organizations, as well as Eugene Volokh. When the Third Circuit reached the merits and recognized a First Amendment right-to-record (while finding the right not clearly established at the time), it pointed to the presence of amici and the quality of the briefing in the case.

• The Fifth Circuit continues to be the only circuit to categorically reject state-created danger as a basis for substantive due process liability. The case involves  the mishandling of a 911 call--including waiting for officers to volunteer to respond and later refusing to help family members enter the victim's house unless they confirmed with local prisons and hospitals that she was not there, as well as the responding officers stopping at 7-Eleven before proceeding to the scene.

More standing/merits overlap (or confusion) in this Sixth Circuit affirmance of denial of a preliminary injunction. Plaintiffs are parents of a child with autism, who placed him in a private therapy program instead of public school; although he improved in private therapy, the state convicted the parents of truancy. They then enrolled him in a state-approved private school. But they are concerned that he may regress, that they may want to pull him out, and that they again will be prosecuted for truancy. So they sued for an injunction. The court of appeals affirmed the denial, agreeing that the parents could not show irreparable harm without the injunction because the hypothetical threat of enforcement was not "certain and immediate," but "speculative or theoretical," dependent on ifs (if the son regresses, if they pull him out of the current school, if they cannot find a new option, if the state decides to prosecute).

Assuming the court is correct about imminence, why is that not a standing problem--the family is not suffering a concrete and particularized injury because they have not shown "an intention to engage in a course of conduct" proscribed by statute for which there is a credible threat of prosecution. The course of conduct (pulling him entirely out of school) may not occur, depending on too many variables. But that seems to be precisely what the injury-in-fact prong of standing asks. The answer should not be different at the standing analysis than at the injunction analysis--if the injury is sufficiently imminent to establish standing, it should be sufficiently imminent to satisfy the irreparable harm requirement. This is why irreparable harm is often assumed in constitutional cases--the violation of rights (or threatened violation, sufficient for standing) qualifies as irreparable harm unless the injunction issues.

As a normative matter, it is interesting to consider whether the plaintiffs might have fared better had they sought a declaratory judgment rather than an injunction. They would not have had to show irreparable injury (although the court almost certainly would have moved this immediacy analysis up to standing and dumped the case on that basis--see above). This illustrates the type of case Sam Bray argues is appropriate for a declaratory judgment--the plaintiffs need an explication of rights but do not need judicial oversight or supervision going forward. The plaintiffs wanted and needed  guidance and certainty--to know where they stood and what they could (and could not) do as they tried to create the best opportunities for their son; they did not need a court order prohibiting government officials from acting at this time.

Posted by Howard Wasserman on November 16, 2019 at 03:25 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Friday, November 08, 2019

State-level universality

Much of the controversy over "nationwide" or "universal" injunctions has arisen in suits challenging federal las and regulations. But the reason for finding and using the appropriate nomenclature is that the real problem--injunctions protecting beyond the plaintiffs--can arise in challenges to all laws at all levels.

A divided Eighth Circuit addressed this in Rodgers v. Bryant, a challenge by two individual beggars (their term) to Arkansas's anti-loitering law. The district court granted a preliminary injunction prohibiting all enforcement and the majority of the court of appeals affirmed, relying on the district court finding that the law is "plainly unconstitutional," so it should not be enforced against anyone. Even the courts most willing to issue non-particularized injunctions in challenges to federal law have advanced beyond "the law violates the Constitution, so it can't be enforced against anyone" rationale.

Dissenting, Judge David Stras gets it perfectly right--the district court granted a universal preliminary injunction, prohibiting state police from "enforcing the law against anyone, anywhere, at any time based on the harm faced by two individual plaintiffs." It is "universal" in that it protects the universe of people who might be subject to Arkansas law-as universal as the travel ban, only applicable to a smaller universe.

Stras examines the history equity to conclude that such non-particularized relief was not proper in individual actions and that equity's representative actions are now reflected in FRCP 23. Stras also hits the essential point that there is no reason to believe (and neither the district court nor the majority found) that "safeguarding Rodgers’s and Dilbeck’s right to speak somehow depends on preventing enforcement of the anti-loitering law against anyone else." The plaintiffs, he argued, sued to vindicate their own rights, so they obtain "complete relief" from an injunction protecting them from arrest under the statute.

Posted by Howard Wasserman on November 8, 2019 at 07:38 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Wednesday, November 06, 2019

Allen v. Cooper argument review

My SCOTUSBlog review of Tuesday's argument. It seems pretty clear the Court is going to reverse--only Justice Alito pushed petititoner's counsel and he seemed just as suspicious of the arguments from counsel for the state. Four justices--Ginsburg, Breyer, Kagan, and Kavanaugh--all expressed different versions of a suspicion that the state was asking for a license to violate rights.

A few interesting stray comments and exchanges from the state's side. The first was his assumption that sovereign immunity only bars claims for damages but no injunction relief; this is true in effect because of Ex Parte Young, but not true as a matter of formal sovereign immunity doctrine. The other was the Court's response to the state's argument that, even if the state cannot be sued, the individual infringing officers can be sued, while conceding they will be indemnified and may enjoy qualified immunity. That last point raised the Chief's hackles--he did not seem to buy an individual suit as an alternative if the officer would be immune; counsel for the state argued that the showing for an intentional infringement (and thus a due process violation) is the same as the showing for clearly established, so any officer claiming immunity likely did not violate due process. Anyway, that was the most exorcised the Chief has been about an officer enjoying qualified immunity.

And, of course, I could not resist some pirate jokes.

Posted by Howard Wasserman on November 6, 2019 at 11:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Friday, November 01, 2019

Fun with diversity (Updated)

Two fun news stories on diversity.

1) President Trump announced yesterday that he was changing his domicile from New York to Florida, although he insists he enjoys living in the White House and plans to continue to do so for another five years. The jurisdiction essay for spring 2017 had Trump attempting to remove Summer Zervos' lawsuit; the best answer was despite having moved to Washington and owning property in Florida at which he spent a bit of time, he remained a New York citizen and was barred from removal by the Forum Defendant Rule.

So has Trump affected a change of domicile with his announcement, seeing as how he owns property and spends some part of the year in Florida? Or does he need to be present there more permanently after leaving the White House? Better still, does his stated desire to remain the White House five more years suggest an intent to remain (and thus a change to DC), at least for now?

2) I got a call from a journalist about this one. An insurance company filed suit against a Washington, D.C.-based law firm (a limited partnership). The firm moved to dismiss because it has a London office and a partner a U.S. citizen) who moved to London to staff the office, has been there for five years, and intends to remain in London for the foreseeable future, while keeping his U.S. citizenship. Because that London partner is domiciled in the U.K. while remaining a U.S. citizen, he is "stateless" for diversity purposes. And because a partnership takes on the citizenship of all partners, the partnership is stateless for diversity purposes. Thank you, Elizabeth Taylor.

I could not tell the reporter whether this was unusual or whether it was an increasing trend. The firm's motion cites a 1990 case from the Second Circuit holding that Sullivan Cromwell could not be sued in diversity because of its U.S.-citizen partners staffing overseas offices.

What I cannot figure out is why the firm (which filed its own suit in state court) would rather be in NC state court against a NC-based insurer. It is both an outsider to the state and a defendant, the two groups who generally want to be in federal court.

Posted by Howard Wasserman on November 1, 2019 at 01:58 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Wednesday, October 30, 2019

JOTWELL: Mullenix on Choi on class-action mega fees

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Stephen J. Choi, Jessica Erickson, and Adam C. Pritchard, Working Hard or Making Work? Plaintiffs’ Attorneys Fees in Securities Fraud Class Actions, which examines "mega fee" awards in class actions.

Posted by Howard Wasserman on October 30, 2019 at 11:36 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Wednesday, October 23, 2019

Why not standing?

The problem with standing is not only that it is an improperly constitutiuonalized merits inquiry. It also is the inconsistency in the movement between standing and merits. Take this unpublished Third Circuit decision. Plaintiffs are anti-choice advocates who with to engage in sidewalk counseling through one-on-one conversations with entering clinic patients. The court performed a limiting construction on the statute, reading it (as it had done a similar ordinance in another case) as not reaching one-on-one sidewalk counseling.

But then shouldn't the result have been that the plaintiffs lacked standing? The conduct in which they intended to engage was not prohibited or regulated by the statute (as interpreted), so they were not suffering an injury-in-fact fairly traceable to the conduct of enforcing that statute, since that statute could not be enforced against them. At least that is how some courts resolve similar cases. And if not standing (as, normatively, it is not), that should mean that all of this is a question of the scope of the challenged law and the scope of constitutional rights?

Posted by Howard Wasserman on October 23, 2019 at 04:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, October 22, 2019

Universal injunctions and mootness

A divided Ninth Circuit affirmed the preliminary injunction prohibiting enforcement of the new regulations regarding the ACA contraception mandate. One issue in the case, which the court ordered briefed, is whether a universal injunction issued by a different district court (and affirmed by the Third Circuit) moots this case. Because the plaintiffs are protected by the other injunction, a Ninth Circuit ruling will not change their situation. (H/T: Brian Cardile of the Daily Journal).

The majority held the case not moot, although some of its analysis does not capture the issue. The court began by discussing the risk of conflicting injunctions, which is not the issue here--the denial of the injunction in the Ninth Circuit would not conflict in the sense of creating competing obligations--the Third Circuit injunction obligates (or restrains) the government from acting as to anyone in the universe, so nothing the Ninth Circuit does changes that. The court also spoke about the territorial limits about its injunction, ignoring that the issue is not geographic where but party who. It said that the injunctions "complement each other and do not conflict." In fact, however, it is not that they complement--it is that they repeat one another, because the Third Circuit universal injunction, which protects the California plaintiffs, renders a second injunction unnecessary.

The majority avoided mootness by applying capable-of-repetition-yet-evading-review. The Third Circuit injunction is preliminary (thus of limited duration) and before SCOTUS on a cert petition, both of which could result in the vacatur of its injunction or at least of its universality. The injury would not be capable of repetition only if the Third Circuit turned this into a universal permanent injunction, which is speculative and far off.

Judge Kleinfeld dissented on mootness, standing, and the merits. As to the different injunctions, he gets it:

That nationwide injunction means that the preliminary injunction before us is entirely without effect. If we affirm, as the majority does, nothing is stopped that the Pennsylvania injunction has not already stopped. Were we to reverse, and direct that the district court injunction be vacated, the rule would still not go into effect, because of the Pennsylvania injunction. Nothing the district court in our case did, or that we do, matters. We are talking to the air, without practical consequence. Whatever differences there may be in the reasoning for our decision and the Third Circuit’s have no material significance, because they do not change the outcome at all; the new regulation cannot come into effect.

This is correct and a proper recognition of what happens when courts take universality seriously.

I am not sure if the proper conclusion is that the appeal becomes constitutionally moot (I am not a fan of justiciability doctrines). Or, as Sam Bray argues, this is a good reason the Ninth Circuit should have stayed its hand.

Update: I took a quick look at the Third Circuit decision affirming the injunction. It misses the point, talking about people who work in different states than they live and the problem of geographic limitations. Again, however, the problem is not where. A protected plaintiff (including a state) is protected everywhere.

Posted by Howard Wasserman on October 22, 2019 at 04:33 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Monday, October 07, 2019

Virginia has jurisdiction over Twitter in Nunes suit

It must be awful procedure day. In addition to whatever the Second Circuit did, a Virginia trial court denied Twitter's motion to dismiss for lack of personal jurisdiction Cong. Nunes' suit against Twitter, a Twitter user, and Devin Nunes' Cow.

The court found "general personal jurisdiction" over Twitter, based on its being registered to do business in Virginia, having a registered agent in Virginia, deriving a large amount of revenue from there, and having many users in Virginia, "sufficient minimum contacts to confer jurisdiction." Perhaps in 2005, but not since Good Year, Daimler, and BNSF did away with general jurisdiction based on a company doing a lot of business in a state and seemed to limit general jurisdiction to state of incorporation and principal place of business. The court discussed BNSF to distinguish it based on the injury occurring in the forum state, but ignored the other two cases. It also emphasized that Nunes suffered an injury in Virginia (because that is where the tweets were sent from and read), while not mentioning that locus of injury is not sufficient and Twitter did not direct any activities (not deleting the tweets) at Virginia in relation to this case. Even if knowledge of the plaintiff's location were sufficient (it is not, after Walden), Twitter's assumption would have been that Nunes was in California or Washington, D.C., not Virginia.

The court also rejected a forum non conveniens argument, because it was not clear there was an alternative forum. It was not clear there would be jurisdiction in California, even though both Nunes and Twitter are from there and the individual defendant consented to jurisdiction there. (Nunes does not want to be in California, where he must deal with its SLAPP statute).

Someone said the judge has a reputation as being pretty good. This is not his best work.

Posted by Howard Wasserman on October 7, 2019 at 06:22 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Monday, September 23, 2019

JOTWELL: Campos on Bartholomew on e-notice in class actions

The new Courts Law essay comes from Sergio Campos (Miami), reviewing Christine P. Bartholomew, E-Notice, 68 Duke L.J. 217 (2018), exploring the use (or non-use) of new technologies for providing notice in class actions.

Posted by Howard Wasserman on September 23, 2019 at 10:50 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Sunday, September 22, 2019

Minding the abstention gaps

I am trying to make heads or tales of this Third Circuit decision, which reveals some problems and holes in abstention.

A family court awarded custody of Malhan's children to Myronova, his ex-wife, ordered him to pay child and spousal support, and to give his ex rental income from their jointly owned properties. Malhan eventually received joint custody (and more than half of residential time) and the court ordered Myronova to return some money. But the court postponed a request to reduce child-support obligations until final judgment (which has not issued), although the children spend more time with Malhan and he earns less money than is ex. At one point Malhan stopped paying child support (in erroneous reliance on a comment by the judge), causing the court to garnish his wages. Malhan sued in federal court, challenging (among other things) the disclosure and administrative levy of his bank accounts, the garnishing of his wages (which order was vacated), and the refusal to allow the plaintiff to claim certain offsets and counterclaims in the state proceedings.

This type of case has been identified as the paradigm Rooker-Feldman case: A party claiming constitutional injury by the custody and similar orders of a state family court. And the district court dismissed the action on that ground. But the Third Circuit reversed, holding that the plaintiff was not a state-court loser because there was no "judgment" from the state court, no order that was final as a formal or practical matter over which SCOTUS might have jurisduction under § 1257. The state proceedings are ongoing--motions are pending, discovery has not closed, no trial is scheduled, and the court has declined to give Malhan relief until that final judgment.

There is a circuit split was to whether Rooker-Feldman applies to interlocutory state-court orders. The Third Circuit adopted the textual argument to say no. RF is based on § 1257 giving SCOTUS exclusive jurisdiction to review state-court judgments; a district court thus lacks jurisdiction to review a challenge to a state-court judgment, which should instead be appealed through the state system and then to SCOTUS. On that view, RF does not apply to state-court orders that could not be appealed to SCOTUS, such as non-final orders.

The argument for RF barring challenges to interlocutory orders relies on the policies underlying RF that federal district courts should not interfere with state-court proceedings or be a forum for obtaining review and relief from state-court decisions. That policy is as offended by an attempt to circumvent state appellate procedure on an interlocutory order as on a final order. One could identify a textual component, tying it to § 1331 granting district court "original" jurisdiction, leaving them without power to, in practice, exercise appellate jurisdiction over a state-court order, even an interlocutory order.

The court rejected an alternate argument that the three claims were barred by Younger. None of the three claims fit the third Younger category of involving "certain orders uniquely in furtherance of the state courts' ability to perform their judicial functions." Count 2 challenged the administrative rules for collecting non-final money judgments; Count 5 challenged orders that are more like final monetary judgments and less like orders (such as contempt or appeal bonds) in furtherance of other judicial orders and thus enabling judicial functions. And the garnishment orders in Count 6 are threatened but not pending, thus federal jurisdiction would not interfere with state-court adjudication of those issues. The Younger analysis probably is correct, although the analysis as to Count 2 seems strained and the analysis and the analysis as to Count 6 suggests the challenge is moot, although the court strains to explain why it is not.

But the case produces a large abstention gap. An ordinary state-court interlocutory order in private civil litigation, one that is not akin to a contempt or appeals-bond order (orders that SCOTUS identified as enabling the state court to operate, as opposed to resolving the particular case), can be challenged in a § 1983 action. But Younger and RF together should mean that state courts must be allowed to decide the cases before them, without interference from federal district courts, subject to eventual review through the state system and to SCOTUS under § 1257. This case may allow substantial number of such cases into federal court.

Posted by Howard Wasserman on September 22, 2019 at 07:25 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Thursday, September 12, 2019

Asylum injunction stayed, everyone confused

Sam Bray and I agree on the impropriety of universal injunctions--I am the NAIA version of Sam as opponent of universality. But I disagree with Sam's suggestion that Thursday's SCOTUS order staying the asylum regulations portends the end of universal/nationwide/whatever injunctions. This case is too confused and too much of a procedural and analytical mess to be that vehicle or even the canary in the coal mine.

First, the unstayed injunction that reached SCOTUS had been narrowed in the court of appeals to be circuit-wide rather than nationwide. So nationwideness should not have been an issue in this case. The court was staying a narrow injunction against a federal regulation.

Second, both lower courts had entirely conflated the issues and analysis, I believe because they continue to use the wrong nomenclature. The result was a mess. The modified-but-unstayed injunction that reached SCOTUS protected the named plaintiffs (immigration-rights advocacy organizations) within the Ninth Circuit, making it over- and under-broad. It was overbroad  because it purported to continue to protect non-plaintiffs; it was under-broad in focusing on geography, thus failing to provide sufficient protection to these plaintiffs by not barring enforcement against them everywhere they might operate and be affected by the challenged regs. In fact, Tuesday's order from the trial court reimposing the "nationwide" injunction (by supplementing the record that the Ninth Circuit found failed to support nationwideness) applied the appropriate analysis: It focused on the extra-circuit activities of the four named plaintiffs, that they operated and were injured outside the Ninth Circuit, and thus needed protection in other states; no mention made of protection for non-parties, which is the real problem. And the Ninth Circuit one day later limited that new injunction to the Ninth Circuit--inappropriately, as there were findings that the organizations work outside the Ninth Circuit and thus needed the protections of the injunction outside the circuit.*

[*] The result of this circuit-only approach is that one plaintiff who operates in multiple states must bring multiple actions to obtain complete relief. What should happen is that one plaintiff should have to obtain one injunction for itself, protecting everywhere. The further litigation should be by other plaintiffs, obligated to obtain their own judgment and remedy.

Instead, this seems an example of what Steve wrote about in his forthcoming Harvard piece (which Sotomayor cites in her dissental): The government increasingly seeking, and gaining, extraordinary relief from the Court in constitutional-injunction cases, rather than allowing litigation to proceed in the lower courts. It reflects the Court's general opposition to injunctions against federal regulations (a concern that seems to have begun on January 20, 2017 and likely will end on January 20, 2021). Scope had nothing to do with it.

Process aside, I am not sure the result--stay of the injunction--is not appropriate. I like to apply the chaos theory to the stay question--would allowing the injunction to take effect create irrevocable chaos if the lower court is reversed. On that theory, for example, stays of injunctions were appropriate in the marriage cases, lest the state have to either rescind marriages or have some same-sex couples married by the fortuity of the time that litigation takes. On the other hand, the stay of the injunction was inappropriate in The Wall case, since the harm is irreparable if government funds are unlawfully spent and an environmentally harmful wall is even partially built. As for this case, while the asylum-regs are enjoined, the government must allow this class of people to seek asylum. But there will be chaos in handling this group of people if the injunction is reversed on appeal because the regs are found to be lawful, yet some asylum-seekers are present when they should not have been and would not have been but for the erroneous injunction. I have to think more about that.

Posted by Howard Wasserman on September 12, 2019 at 07:44 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Thursday, September 05, 2019

"We the People" on universal injunctions

The new episode of the National Constitution Center's "We the People" podcast featured Amanda Frost and I discussing and debating universal injunctions. It was a great conversation.

Posted by Howard Wasserman on September 5, 2019 at 11:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Under color?

An interesting under color question. The officers were in disguise (and thus out of uniform) and presumably off-duty. But their personal vendetta arose from their professional conduct as police officers about which the citizen-victim had complained. Could they have done this but-for their official position? Being police officers did not enable the conduct. But being police officers is the only reason they had to vandalize this guy's property.

Posted by Howard Wasserman on September 5, 2019 at 11:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Friday, August 30, 2019

Declaratory judgments and injunctions

The Fifth Circuit held that due process was violated by a system in which some portion of cash bail was used to fund court expenses and the magistrate deciding bail sits on the committee deciding how money should be spent. The remedies portion states as follows:

After recognizing this due process violation, the district court issued the following declaration: "Judge Cantrell's institutional incentives create a substantial and unconstitutional conflict of interest when he determines [the class's] ability to pay bail and sets the amount of [*8] that bail."

That declaratory relief was all plaintiffs sought. They believed that section 1983 prevents them from seeking injunctive relief as an initial remedy in this action brought against a state court judge. See 42 U.S.C. § 1983 ("[I]n any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable . . . .").7

That statutory requirement reflects that declaratory relief is "a less harsh and abrasive remedy than the injunction." Steffel v. Thompson, 415 U.S. 452 , 463 (1974) (quotation omitted); see also Robinson v. Hunt Cty., 921 F.3d 440 , 450 (5th Cir. 2019); Restatement (Second) of Judgments § 33 cmt. c ("A declaratory action is intended to provide a remedy that is simpler and less harsh than coercive relief . . . ."). Principal among its advantages is giving state and local officials, like Judge Cantrell, the first crack at reforming their practices to conform to the Constitution. Steffel, 415 U.S. at 470 .

One response to the declaratory judgment would be eliminating Judge Cantrell's dual role, a role that is not mandated by Louisiana law. In contrast, because Louisiana law does require that the bond fees be sent to the Judicial Expense Fund, LA. R.S. 13:1381.5(B)(2)(a) , the declaratory judgment cannot undo that mandate. Challengers did not seek to enjoin that statute, instead arguing only that the dual role violated due process. But given today's ruling and last week's in Cain, it may well turn out that the only way to eliminate the unconstitutional temptation is to sever the direct link between the money the criminal court generates and the Judicial Expense Fund that supports its operations.

I am unsure about the final paragraph. The challengers cannot "enjoin that statute" because courts do not enjoin statutes; they enjoin enforcement of statutes. The district court could have declared that the state-law mandate created the unconstitutional conflict of interest; to comply with that judgment, the defendants would have had to stop enforcing that statute, much as if they had been enjoined from enforcing.  The court issued a seemingly narrower declaratory judgment. Perhaps the point of the final sentence is that eliminating the defendant magistrate's dual role would not eliminate the constitutional violation, opening the door to an injunction because the defendants violated the declaratory judgment.

Two other cute procedural pieces in the case: It was certified as a class action, thus avoiding mootness when the named plaintiffs' criminal cases ended. The court also noted that it is not clear that the exceptions provision of § 1983 applies here, because it is not certain that the defendant judge was acting in a judicial rather than administrative capacity.

Posted by Howard Wasserman on August 30, 2019 at 06:08 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, August 28, 2019

Merits, not standing

I have no idea whether the Eleventh Circuit is correct that a single unsolicited text violates the Telephone Consumer Protection Act. But it highlights the absurdity of treating standing as something other than substantive merits. The heart of the analysis is the scope of the TCPA and congressional intent--what should be questions of whether a plaintiff has stated a cause of action under applicable substantive law.

Posted by Howard Wasserman on August 28, 2019 at 10:17 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Sunday, August 25, 2019

Qualified immunity and judicial departmentalism

The Sixth Circuit on Friday held that Kim Davis was not entitled to qualified immunity from a claim for damages by same-sex couples denied marriage licenses in the early weeks after Obergefell. Obergefell clearly established the constitutional right the plaintiffs sought to vindicate--to receive marriage licenses and a reasonable official should have known about that right. And Davis did not show her entitlement to a religious accommodation, as the court said:

Davis provides no legal support for her contention that Kentucky’s Religious Freedoms Restoration Act required her to do what she did. Her reading of the Act is a subjective one and, as far as we can tell, one no court has endorsed. In the presence of Obergefell’s clear mandate that “same-sex couples may exercise the fundamental right to marry,” and in the absence of any legal authority to support her novel interpretation of Kentucky law, Davis should have known that Obergefell required her to issue marriage licenses to same-sex coupleseven if she sought and eventually received an accommodation, whether by legislative amendment changing the marriage-license form or by judicial decree adopting her view of the interplay between the Constitution and Kentucky law.

Under judicial departmentalism, an executive official, such as Davis, is free to adopt and implement her "subjective" reading of the statute and judicial precedent. She does not need "legal authority to support her novel interpretation of Kentucky law"--the legal authority is her power as an executive official to act on her understanding of the law she is empowered to enforce. But qualified immunity is focused on precedent and the judicial understanding of precedent. So it could check executive officials going too far in a departmentalist direction, by tying them to judicial precedent on pain of damages.

Posted by Howard Wasserman on August 25, 2019 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Saturday, August 24, 2019

More on SLAPP laws in federal court

The Fifth Circuit on Friday held that Texas's SLAPP law does not apply in federal court on diversity, following the (correct) analysis from the D.C., 10th, and 11th Circuits that the state law conflicts with FRCP 12 and 56 by adding an additional hurdle to trial. This decision complicates the circuit split because the 5th Circuit had held in 2009 that Louisiana's SLAPP law applies in federal court. The panel held it was not bound by circuit precedent. It was pre-Shady Grove, which the panel says sharpened the proper analysis. And the Texas law is different than the Louisiana law; the latter uses standards that look like summary judgment, while Texas imposes higher standards that more "manifest[ly]" conflict with the Federal Rules.

I doubt this will be the case on which SCOTUS will resolve the question, at least not immediately. The first move will be en banc reconsideration on the Fifth Circuit to resolve its internal split.

My conclusion on the overall Erie question is that the "special motion" provisions should not apply in federal court but fee-shifting provisions should. The question is whether that sufficiently protects free-speech interests, by allowing litigation to last a bit longer (until the protections of NYT can do their work in an appropriate case), but allowing the defendant to recover attorney's fees, which recoups the defendant's major financial burden.

Posted by Howard Wasserman on August 24, 2019 at 11:26 AM in Civil Procedure, First Amendment, Judicial Process, Law and Politics | Permalink | Comments (2)

Friday, August 16, 2019

Nomenclature and the real issue on the scope of injunctions

A Ninth Circuit panel refused to stay a preliminary injunction prohibiting enforcement of new asylum regulations. But a divided court narrowed the injunction from its "nationwide" scope to the extent it applies "beyond the Ninth Circuit," because the district court had not found that beyond-the-circuit scope was necessary to remedy the plaintiffs' harm. The decision, while proper, illustrates the importance of the problems of nomenclature and the misunderstanding of what is at stake.

The plaintiffs in the action were four California-based organizations that represent asylum-seekers; the district court found they had organizational standing because they would lose clients and funding and be forced to divert resources as a result of the regulation.*

[*] The district court also found the organizations within the statutory zone of interest, although that no longer should be part of the standing analysis.

The focus of the scope-of-injunction analysis thus should have been the four organizations, not California. The injunction should have been limited to prohibiting enforcement as to these organizations. But it should have protected those organizations everywhere in the country--states within the Ninth Circuit as well as any other states in which they may represent (or seek to represent) asylum-seekers. Perhaps that means the injunction would reach California and Arizona only, if these organizations only represent clients in those states; outside-the-states application is not necessary to remedy their harm if they do not work outside those states. But to the extent they work outside California and Arizona, their harm is remedied only if the injunction protects them outside of Ninth Circuit states.

And that is why the term "nationwide" does not work. All injunctions should be nationwide in the sense of protecting the plaintiffs wherever in the nation they are--that is the only way to remedy their harm. The problem in this case (and others) is that the district court's injunction purported to prohibit the government from enforcing the regulation beyond these four organizations. The problem is that the injunction was not "particularized" to the parties to the case, but attempted to apply to the "universe" of people and organizations affected by the regulation.

The court thus should have "grant[ed] the motion for stay pending appeal insofar as the injunction applies" beyond the four plaintiff organizations in this action.

Posted by Howard Wasserman on August 16, 2019 at 02:25 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Tuesday, August 06, 2019

Second Circuit revives Palin defamation suit

Decision here. I wrote about the case here.

The court of appeals correctly criticized the district court's weird use of an evidentiary procedure (testimony from the primary author of the challenged editorial) to evaluate the complaint. When a court considers information outside a complaint, it either must exclude the information and continue as a 12(b)(6) or convert to summary judgment; it cannot use the information and continue to treat the motion as a 12(b)(6). The Times argued that the testimony was background information that was "integral to" the material in the complaint; but that could not be right, because the information was obtained after the complaint was filed, as opposed to information the plaintiff could have relied on in drafting the complaint.

The problem with the decision was in holding that Palin's Amended Complaint (drafted with the assistance of that testimony) was plausible. This is bad for First Amendment purposes but procedurally interesting in two respects.

The court found that the district court had credited the editorial writer above the allegations in the complaint, which was improper. The district court had stated that the author's conduct was "much more plausibly consistent" with a mistake than with actual malice. But it "is not the district court’s province to dismiss a plausible complaint because it is not as plausible as the defendant’s theory. The test is whether the complaint is plausible, not whether it is less plausible than an alternative explanation." Twombly and Iqbal contain language that a complaint is implausible where there is a reasonable alternative explanation for the conduct (in Iqbal, the alternative was "protecting the nation after 9/11" rather than "invidious discrimination"). Lower courts have generally ignored that language; here, the Second Circuit flatly rejects that analysis, at least in this type of defamation action.

The court closed the opinion as follows:

We conclude by recognizing that First Amendment protections are essential to provide “breathing space” for freedom of expression. But, at this stage, our concern is with how district courts evaluate pleadings. Nothing in this opinion should therefore be construed to cast doubt on the First Amendment’s crucial constitutional protections. Indeed, this protection is precisely why Palin’s evidentiary burden at trial—to show by clear and convincing evidence that Bennet acted with actual malice—is high. At the pleading stage, however, Palin’s only obstacle is the plausibility standard of Twombly and Iqbal. She has cleared that hurdle.

But this raises an important point. The clear-and-convincing evidence standard has been incorporated into summary judgment, because whether a reasonable jury could find for the plaintiff must account for the standard. Should the same be true for 12(b)(6)--must it be plausible by clear-and-convincing evidence? This would twist pleading from its purposes, but Twombly and Iqbal did that in trying to make it a weed-out point. The question is whether we follow that to its logical conclusion.

The standard of proof may define how much of a problem this case will be for The Times and the First Amendment. The bulk of the analysis defines this as a case of competing factual inferences--Palin's facts show actual malice, the author says it was a mistake; if so, then this case cannot go away on summary judgment, because the court is equally prohibited from deciding witness credibility as would be required in this case--only a jury could resolve those questions.* That last paragraph of the opinion, emphasizing the standard of proof that will apply at trial and summary judgment, may have been a signal to the lower court about what should happen next.

[*] The court declined to treat the district court decision as one for summary judgment because, even as a summary judgment decision, the court impermissibly made credibility determinations.

Posted by Howard Wasserman on August 6, 2019 at 06:56 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Friday, August 02, 2019

Judicial immunity can be shocking (sorry)

In the judicial immunity section of my civil rights book, I use a puzzle that I blogged about years ago: A judge in Mississippi cited for contempt and jailed an attorney for refusing to recite the pledge of allegiance prior to court proceedings. I spun that off into several hypos (inspired by a comment from Jack Preis), including the judge ordering the bailiff to tase the lawyer and the judge tasing the lawyer himself. The question is where judicial immunity runs out.*

[*] The attorney did not sue the judge, so this never became a real issue. The judge was disciplined--one of many, many disciplinary actions against him.

This story discusses the use of stun belts to control unruly defendants in court. The problem, besides the extreme pain these devices inflict, is that some judges use (or threaten to use) them not to control security threats, but to get defendants to pay attention to the judge or to stand while addressing the court. States vary as to who controls the device--the courtroom deputy acting on the judge's order or the judge herself.

So here is my hypothetical, brought to life. The arguable immunity turns on  the nature of the judge's action: Ordering the bailiff to tase the attorney would be immune, tasing the attorney himself would not be (nor would Jack's example of the judge shooting the attorney for refusing to comply. Giving orders to maintain courtroom control is a judicial function, with bailiffs and deputies executing those orders; tasing someone to maintain order is not a judicial function because not something done by a judge as judge. But at least some jurisdictions give the judge (not the bailiff) control over this device, making its use--not merely ordering its use--something that the judge is doing in her role as a judge while on the bench.

The story linked above discusses the problems in the use of these devices and how they affect criminal trials, as well as efforts to enjoin their use. No one has yet sued a judge for damages for employing the device, which is where judicial immunity would kick in. Stay tuned.

Posted by Howard Wasserman on August 2, 2019 at 12:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, July 31, 2019

Sherry on the "Kardashian Court"

Suzanna Sherry has a new piece on SSRN, Our Kardashian Court (and How to Fix It). Sherry argues that partisanship can be reduced on SCOTUS by a law prohibiting concurring and dissenting opinions and having the Court issue one per curiam opinion, with no indication of how many Justices joined that opinion. The goal is to eliminate the opportunity for Justices to become celebrities or to push personal agendas.

This is a fascinating idea. I had the privilege of reading and commenting on an earlier draft. Some of my comments are after the jump:

• Sherry brackets whether this should extend to courts of appeals. But note that the concerns for both celebrity (Posner, Kozinski, many of the Fed Soc people that Trump has appointed) and partisanship (especially with the attention given to many of Trump’s appointees) are present on these courts. Dissents on the courts of appeals may help SCOTUS identify which cases to take, which is a positive. Otherwise, they raise the same problems Sherry identifies--celebrity and pushing individual agendas--while adding new ones, such as auditioning for SCOTUS.

• On this point: At SEALS, Donald Campbell (Mississippi College) presented a paper trying to measure how dissents and separate opinions reflect or undermine collegiality on courts of appeals, where there often is a a "norm" that judges write separately only in extraordinary cases. If collegiality is affected by dissents, then Sherry's proposal would be a welcome change for those courts, ensuring and re-enforcing that norm and that collegiality.

• Sherry would impose this by statute, so she spends time considering the separation of powers objections to such a law, concluding the law would be valid. This would be another opportunity to test concepts of judicial independence and what it means for Congress to tell the Court how to decide a case.

• The key weakness to the proposal might be that it is too late. The partisan divide is too sharp and the identities and positions of the individual Justices too well-known. Everyone would know who did and did not join a per curiam opinion overruling Roe/Casey. Had this proposal come in 1973--when Stewart, White, and Powell were the median justices and appointing party did not align with judicial ideology--it might have helped prevent us from getting to where we are now.

As Larry Solum says, download it while it's hot.

Posted by Howard Wasserman on July 31, 2019 at 01:13 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (10)

Saturday, July 27, 2019

Random snippets of law

Each too short for a stand-alone post. Maybe this is why we have Twitter.

Here is everyone's Evidence question for the coming semester: The government in the Roger Stone prosecution has moved in limine to admit the clip from Godfather Part II in which Frank Pantangeli recants his prior statement implicating Michael Corleone. The government argues this is relevant to explaining Stone's repeated references in his communications with Jerome Corsi and shows that Stone was urging Corsi to lie to Congress.

• This point is moot with the announcement by the House Judiciary Committee that it is investigating "possible impeachment." But following Robert Mueller's testimony on Wednesday, Adam Schiff and Nancy Pelosi stated that their preferred next step was to complete litigation over various subpoenas; if the President disobeyed an Article-III-final court order, that would be the last straw prompting a move to formal impeachment.

I did not understand why that is or should be the relevant line. Some have flagged this as the line that Nixon would not cross, so crossing it would make Trump worse than Nixon. But it is hardly the worst or most wrongful thing a President could do. And it is not obviously worse or more impeachable than the misconduct--some criminal, some representing abuses of office or prospective office--described in Mueller's report and testimony.

I would guess that Pelosi and Schiff believed that Mueller had not described, in sufficiently dramatic terms, a single flashing-red-light act that would rally the public. Or they bought the media spin that Mueller's testimony was too dull to do that. So the strategy became to wait for the next single flashing-red-light act. Or the one after that. Or . . .

Posted by Howard Wasserman on July 27, 2019 at 09:02 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (0)

Wednesday, July 17, 2019

My civil rights course, in one case

This opinion by Judge Easterbrook is a fantastic encapsulation of most of my civil rights course.

Dad loses custody of kids because of state court decision, made in part on testimony of court-appointed psychologist; court strips custody, limits visitation to supervision-only, and twice declines to rescind supervision-only. Dad sues psychologist in her "official capacity," alleging that state child-custody law violates the First and Fourteenth Amendments.

Spot the many, many doctrinal problems with this lawsuit. I think I may use this as one grand, theory-of-everything hypo at the end of class.

(I especially like that, in rejecting plaintiff's argument that he has sued the state through an official capacity suit, Easterbrook talks about Will and states not being § 1983 "persons," rather than the Eleventh Amendment. Courts consistently get this wrong in § 1983 cases).

Posted by Howard Wasserman on July 17, 2019 at 06:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, July 04, 2019

It's the district court order, not the SCOTUS affirmance

On the eve of Friday's hearing on the next steps in the census case, more thoughts on nomenclature: The concern about the should not be framed as "The President is disobeying a Supreme Court decision."* The concern should be framed as "The President is disobeying a court order."

[*] Decision is an imprecise word, in any event. The court issues a judgment/order and the court issues an opinion explaining that judgment. I suppose a decision encompasses both of those. But when the judgment/opinion distinction matters, as it does, the specific words are preferable.

The key is that an injunction, entered by the district court, is in place and prohibits the printing and use of a census form with a citizenship question. That order prohibits the government from proceeding with a census containing that question and that order is what the President, Commerce, et al. violate if they proceed with the question.

That the Supreme Court affirmed the district court injunction is beside this point. SCOTUS affirmance means the government has nowhere left to turn within the judiciary. But it does not add greater force to the district court's injunction. Government officials violate the order by proceeding with the census-with-citizenship-question--whether they had proceeded the day before SCOTUS affirmance or the day after SCOTUS affirmance.

Posted by Howard Wasserman on July 4, 2019 at 12:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Wednesday, July 03, 2019

More action on the census (Edited)

The citizenship-question case is heating up, following a tweet from the President denouncing as fake news reports that the administration had stopped pursuing efforts to place the citizenship question on the 2020 census. This despite DOJ attorneys having represented that fake news to plaintiffs' counsel and the district court as the government litigation position. This did not sit well with Judge Hazel (D.Md.), who held an on-the-record telephone conference to find out what is going on (as was the attorney for the government).

Judge Hazel questioned whether the government attorneys were speaking for their client at this point. He responded skeptically to the plaintiff's suggestion that he enjoin government officials (presumably including the President) from tweeting or otherwise speaking contrary to the government's litigation position or to requiring the Census Bureau or Commerce Department to publicly counteract any contrary tweets from the President.

The court gave the parties until Friday to submit either a stipulation that the citizenship question will not appear on the census or a scheduling order for litigating the equal protection issues (denying, with a sharp "no," the government's request to have until Monday). Meanwhile, Judge Hazel confirmed that the injunction prohibiting the government from printing questionnaires with a citizenship question remains in place, meaning the President is flirting with ignoring (or ordering underlings to ignore) a court order. On the other hand, government attorneys suggested they may go back to SCOTUS for a motion "clarifying" (or "undercutting," from the plaintiffs' standpoint) the Court's remand decision.

The court declined to do anything to get a firmer answer on whether June 30 (last Sunday) remains the drop-deadline by which the government must have the census form finalized (as the government has insisted throughout the litigation-he suspected "we're not going to get a useful answer to that question." But the court made clear that he did not blame the attorneys for this confusion.*

[*] Another way departmentalism remains in check, at least with a normal President. DOJ lawyers do not like getting yelled at when the executive officials they represent go off the rails. With a normal President, the attorneys can try to exert some control over the client. Or, with an abnormal President, they could resign or refuse to carry out his inappropriate wishes. Neither is happening here.

Posted by Howard Wasserman on July 3, 2019 at 08:58 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Judicial departmentalism and overbroad injunctions in the news

First, the Fifth Circuit reversed the contempt citation against a Carmen Alvarez and her attorneys for attempting to enforce the Department of Labor's overtime regs in a private action following a universal injunction prohibiting DOL from enforcing those regs in an action brought by Nevada and other states. The court held that there was no privity between DOL and Alvarez or her lawyers, because there was no evidence of an express or implied relationship among them that is necessary for one party to adequately represent the interests of another. The court stated that Chipotle's theory that "DOL represents every worker’s legal interests through its enforcement of the FLSA so as to bind every worker in the United States to an injunction where the DOL is the only bound party lacks authoritative support." Like Title VII, the private right of action under labor laws and regs leaves room for private persons to claim injuries and remedies distinct from those established in government enforcement.

Second, Texas GOP Representative Chip Roy took to Twitter to urge the President and the Commerce Department to ignore the lawyers "Completely. Print the census with the question - and issue a statement explaining why - “because we should.” Done." Such action could not be defended as judicial departmentalism, which allows executive disregard of precedent but not particular orders in particular cases; those most be obeyed unless reversed or modified. The President, the Commerce Secretary, and the other federal officials involved would be violating a court order prohibiting the use of the citizenship question* and would be subject to contempt and contempt sanctions for that action.

[*] Another example of indivisible remedies, giving an individual injunction universal scope. The government cannot print or use multiple census forms, so an injunction protecting individual plaintiffs spills over to protect everyone.

Posted by Howard Wasserman on July 3, 2019 at 07:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Saturday, June 29, 2019

Another remedy in The Wall

Judge Gilliam of the Northern District of California issued two orders on Friday declaring invalid President Trump's efforts to divert funds for building The Wall. In Sierra Club v. Trump, the court permanently enjoined three acting cabinet officers and "all persons acting under their direction" from "taking any action to construct a border wall" in certain areas using certain funds. In California v. Trump, the court declared the use of the same funds for some of those sections unlawful, but declined to grant a permanent injunction. The court also ensured that the cases could be appealed together by certifying California for FRCP 54 appeal, along with the immediately appealable injunction.

Sierra Club does not speak to the scope of the injunction, because this is a case of indivisible relief and remedy. The court cannot enjoin the use of funds for the wall as to the plaintiffs but not to non-parties; any prohibition on the use of funds unavoidable inures to everyone's benefit, even if the injunction is formally particularized to the plaintiffs.

The court justified denying the injunction in California by pointing to the injunction in Sierra Club prohibiting use of funds on the same sectors of wall. California (and New Mexico, its co-plaintiff) would suffer no irreparable harm, because the injunction protects them in effect if not in name. This provides an interesting example of when declaratory relief may be sufficient and an injunction unnecessary--when an injunction protects the D/J plaintiffs, so the declaration is sufficient. It also answers the Ninth Circuit's question about whether a universal injunction in one case moots another--it does not moot the case because a declaratory remedy may be effective, although an injunction is not warranted. (Not that courts should issue universal injunctions--but this is the practical effect if they do).

Posted by Howard Wasserman on June 29, 2019 at 09:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Tuesday, June 18, 2019

AALS Section on Federal Courts: Annual Award for Best Untenured Article on the Law of Federal Jurisdiction

The AALS Section on Federal Courts is pleased to announce the sixth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school ­and to solicit nominations (including self-nominations) for the prize to be awarded at the 2020 AALS Annual Meeting in Washington, D.C. 
 
The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2019 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2019), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
 
Nominations (or questions about the award) should be directed to Seth Davis at the University of California, Berkeley School of Law ([email protected]). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2019. Nominations will be reviewed by a prize committee comprised of Tara Leigh Grove (William & Mary), Gillian Metzger (Columbia), Jim Pfander (Northwestern), Fred Smith (Emory), and Steve Vladeck (Texas), with the result announced at the Federal Courts section program at the 2020 AALS Annual Meeting.

Posted by Howard Wasserman on June 18, 2019 at 09:10 PM in Civil Procedure, Teaching Law | Permalink | Comments (0)

Monday, June 17, 2019

No state action in administering public-access cable channels (Updated)

In Manhattan Community Access Corp. v. Halleck, SCOTUS held that the private non-profit corporation designated by New York City to manage state-required public-access cable channels was not a state actor, so not subject to First Amendment limitations in banning a speaker from the channels. Justice Kavanaugh wrote for the Chief, Thomas, Alito, and Gorsuch; Justice Sotomayor dissented for four.

The opinions seemed to look at different facts triggering different analyses.

The majority applied the public-function cases, which hold that a private actor only performs a public function if it is traditionally and exclusively performed by government; "operation of public access channels on a cable system" has not been exclusively performed by government. The majority rejected a more general description of the function as managing a public forum; merely hosting speech does not create state action. And the city's designation of the corporation to operate the channels was equivalent to granting a license or to regulating the private entity, neither of which is sufficient.

The dissent argued that this was not a case of public regulation of a private entity, but of government delegation of a constitutional obligation to an entity created (with government assistance) for purposes of assuming that obligation. The city retained an interest in transmitting certain content (whatever goes on the public-access channels) over the privately owned cable or in regulating the transmission of content over that cable; Sotomayor analogized the cable to a privately owned billboard where the government contracted to access to space on the billboard in exchange for allowing the private company to place it. Given this property interest and the nature of the space as a forum for speech, the case was controlled not by the regulated-entity cases, but by the cases in which government delegated a constitutional obligation to a private entity. Managing a designated public forum is akin to providing medical care for prisoners--government is not required to designate public forums or imprison people; having done so, it incurs constitutional obligations in how it does so; and private persons assume those responsibilities when government delegates its constitutional responsibilities. The distinction is between a private entity entering the marketplace to do a job and the government hiring a private agent to perform its tasks; in the latter situation,the question is not whether the task is traditional and exclusive, but whether the government had an obligation to perform that function.

The majority attempted to narrow its decision, emphasizing that this was not a case of a delegated constitutional obligation, of the city maintaining a property interest in the channels, or of the city managing the channels itself. But the majority did not address or hint at the case the dissent believed this case to be--the government opening a public forum, then delegating management to a private entity (created for that purpose). It also is worth watching whether some municipalities in New York cease managing the P/A channels and delegate to private entities.

In an event, this decision should, for the moment, take care of people complaining about being banned from Twitter and YouTube. Update: Ken White of Popehat has a Twitter thread on why the arguments in favor of regulating platforms have no support on the Court--all nine Justices accept the starting proposition that a private actor who opens private space for speech does not become a state actor.

Posted by Howard Wasserman on June 17, 2019 at 04:51 PM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (4)

Friday, June 14, 2019

This is how you establish broad injunctive relief

The D.C.Circuit affirmed part of an injunction prohibiting enforcement of an ORR policy barring unaccompanied children from obtaining pre-viability abortions.

This is the type of case in which many courts have been issuing universal injunctions, despite that enforcement against non-plaintiffs does not affect individual plaintiffs. But the district court here took the procedurally appropriate approach--certifying a 23(b)(2) class of "all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government," then enjoining enforcement of the policy as to class members. We get to the same place, but through appropriate procedures, as it should be for a system in which constitutional review occurs within the scope of civil litigation. This is why the Court enacted 23(b)(2).

The majority opinion (per curiam for two judges) runs more than 70 pages. It applies the "inherently transitory class" exception to avoid mootness and considers the effect of the "one-good plaintiff" rule in multi-party individual actions as opposed to class actions. It spends a lot of time on the appropriate scope of the class, as opposed to the appropriate scope of the injunction--which is where the focus should be.

There is an interesting interplay between the inherently transitory and capable-of-repetion-yet-evading-review doctrines as to mootness, in that the former justifies the limits on the latter. C/R/E/R requires that the harm be capable of repetition as to the plaintiff; it is not enough that someone else might be subject to the harm. Protecting beyond the plaintiff requires a class, which is when the former doctrine kicks in. That leaves a gap--mootness cannot be avoided in an individual action to prevent harm to a non-party who may be subject to enforcement of the challenged regulations. But that is the point--the court provides remedies for parties, through the procedural mechanisms for establishing parties.

The government faces a choice. Justice Kavanaugh is recused because he was on the first panel to consider this case (the majority opinion discusses and rejects the position Kavanaugh took as to allowing the government to delay the procedure). So review would almost certainly produce an evenly divided Court affirming the lower court. So the government's best option is to obey the injunction, stop enforcing the policy and/or come up with a new policy, and hope that Justice Ginsburg retires.

On that note, a question for judicial-recusal experts. Imagine the following: ORR amends its policy to something slightly less restrictive and threaten to enforce it; plaintiffs return to the district court with a motion to enforce the injunction and/or an amended complaint, arguing that the new policy violates the rights of the same class; district court grants the motion and modifies the injunction to prohibit enforcement of the new policy; D.C.Circuit affirms. Must Kavanaugh recuse? The challenge is to a different policy. But it is the same litigation in which he ruled as a lower-court judge. Thoughts?

Posted by Howard Wasserman on June 14, 2019 at 04:39 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Tuesday, June 04, 2019

JOTWELL: Wasserman on multiple authors on the problems with SCOTUS term limits

I have the new Courts Law essay, reviewing Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade's Whiplash (forthcoming in Tex. L. Rev.) and Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court (forthcoming in Yale L.J.). The first article shows the doctrinal instability that might arise from 18-year term limits, using an empirical study of Roe; the second offers two alternatives to term limits.

One of the Epps/Sitaraman proposals would have a fifteen-person SCOTUS comprised of ten permanent Justices (five from each major party) and five lower-court judges sitting for one term, chosen unanimously by the permanent members. Democratic presidential candidate Pete Buttigieg has endorsed that proposal, but Elie Mystal believes it is unconstitutional and naive, if exciting.

I somewhat like the other Epps Sitaraman proposal of the Supreme Court Lottery--the "Court" consists of every court of appeals judge and each sitting two-week sitting features a randomly selected panel of nine. This would have the interesting effect of making SCOTUS more like an ordinary federal court, which might not be a bad thing.

Posted by Howard Wasserman on June 4, 2019 at 11:26 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Monday, June 03, 2019

It's all claim-processing rules

In a decision surprising no one, a unanimous Court,, per Justice Ginsburg (of course), held in Fort Bend County v. Davis that Title VII's administrative-exhaustion requirement was a mandatory, but non-jurisdictional, claim-processing rule.

The opinion adds a bit to its framework, stating that jurisdictional is "generally reserved for prescriptions delineating classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction)." Other prescriptions can become jurisdictional if Congress includes them in a jurisdictional provision, such as an amount-in-controversy. The opinion also hints at an overwhelming presumption that a provision is non-jurisdictional. Congress must "clearly state" something as jurisdictional, otherwise courts must treat is as non-jurisdictional, pointing to a growing list of non-jurisdictional claim-processing rules and preconditions for relief.

The Court then makes quick work in classifying this as non-jurisdictional. It does not appear in either § 1331 or Title VII's statute-specific jurisdictional grant; it appears in separate (although nearby) provisions that do not speak to jurisdiction or the court's authority. Instead, they speak to a plaintiff's procedural obligations--what it must do prior to commencing civil litigation--submit papers to the EEOC and wait a specified period; this is kindred to raising objections or registering a copyright before filing suit. That the exhaustion requirement serves important purposes--encouraging conciliation and giving the EEOC first crack at enforcement--did not affect the jurisdictionality question (although it could affect whether a provision is mandatory.

Finally, it is worth noting that the list of non-jurisdictional claim-processing rules and preconditions to relief includes Arbaugh's numerosity requirement. I would have said that this is neither, but a merits rule--the scope of the statute and who is covered by it. I am not sure what to make of this conflation. But I am most interested in the merits/jurisdiction line, so it is worth following.

Posted by Howard Wasserman on June 3, 2019 at 01:27 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Saturday, May 25, 2019

The difficulty of civil rights relief

I may give my Civil Rights class the story of San Francisco police raid on a free-lance journalist seeking the identity of the journalist's source and unused material for a story on the death of the county public defender. The chief of the San Francisco police apologized on Friday, saying the search and seizure was wrong in several respects, that it would not use the materials seized, and that the matter was being referred to other agencies for further investigation. The journalist, Bryan Carmody, has moved to quash the warrants.

The case illustrates the difficulty of obtaining retrospective relief and remedies in federal court for constitutional violations and the way plaintiffs must threat a needle. It thus provides a nice puzzle for class discussion. Consider:

  • The constitutional merits are up in the air. The search may have violated California's shield law, which protects journalists against disclosure of sources and unpublished information, including by police; but state law cannot provide the basis for a § 1983 claim. Nor can the fact that the officers violated department policies. The First Amendment does not provide such protections. There could be a First Amendment retaliation claim, as the police who obtained and executed this warrant seem to have had it in for Carmody; that claim may depend on how the Court resolves Nieves v. Bartlett (if it ever does) on the connection between probable cause and First Amendment retaliatory intent.

    • The judges who issued the warrants have judicial immunity.

    • Police officers have derivative judicial immunity for carrying out the warrant. That immunity is lost if execution went beyond simple enforcement, as some stories suggest it did in using a battering ram and pry bar to get into the house and handcuffing Carmody during the search. Of course, the officers may enjoy qualified immunity, unless Carmody can find precedent involving an over-the-top search of a journalist's home.

    • There is a better claim that the officers did not disclose Carmody's status as a journalist in the warrant application, which the chief identified as a problem. But again, it likely is not clearly established by factually similar case law that not disclosing a search target's status as a journalist violates the First or Fourth Amendments. And even if clearly established, it may be hard to identify or establish damages arising from the omission on the warrant, independent of the search (which was authorized by warrant).

    • The city cannot be sued. The search violated departmental policy in several respects. There is no indication that any department or city policymakers were involved in the warrant application or search. And there is no indication that this has happened previously to put policymakers on notice that training  ("hey, don't search journalists looking for sources") was necessary.

Posted by Howard Wasserman on May 25, 2019 at 03:18 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Thursday, May 23, 2019

Universal declaratory judgments

Chief Judge Saris of the District of Massachusetts entered a final judgment declaring invalid a Massachusetts law prohibiting surreptitious recording of government officials. This was two consolidated actions, one brought by two individuals and one brought by an investigative-journalism organization.

The court declined to issue a permanent injunction, finding that a declaratory judgment was sufficient, in part because:

Defendants have stated they will follow this Court's ruling, and the Court will take them at their word. . . .The Court "assume[s] that municipalities and public officers will do their duty when disputed questions have been finally adjudicated and the rights and liabilities of the parties have been finally determined . . ."

But what does it mean to follow the court's ruling? Does it mean not enforcing the law against the plaintiffs in these cases or does it mean not enforcing the law against anyone? That is, can a declaratory judgment be universal to protect beyond the named plaintiffs? Or must declaratory judgments be particularized, as injunctions must be (or so I argue). This affects what might trigger conversion of the D/J into an injunction-were the government to attempt to enforce the law against someone other than the plaintiffs.

The answer should be that a declaratory judgment must be as particularized as an injunction. Under the Article III/litigation-structure arguments from Sam Bray, Michael Morley, and me, the point is that any judicial remedy must be particularized because the remedy should resolve the dispute between the parties to the action and not beyond. In endorsing particularity in federal remedies, SCOTUS explicitly treated declaratory and injunction relief the same, as stopping enforcement of the challenged law only against the federal plaintiffs and leaving the state free to enforce against others who violate the statute. Moreover, declaratory judgments are a "milder" form of relief because non-coercive, compared with the "strong medicine" of an injunction. If so, it would not make sense for the milder remedy to have broader party effects than the stronger remedy. Finally, it would be odd for these plaintiffs to be able to convert to an injunction to stop enforcement of the law against someone else, just as one individual cannot ask a court to enjoin enforcement of a law against someone else.

Posted by Howard Wasserman on May 23, 2019 at 09:15 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (13)

JOTWELL: Erbsen on Frye on Tompkins

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Bryan L. Frye, The Ballad of Harry James Tompkins, 52 Akron L. Rev. 531 (2019), which argues that we may have the facts of Erie wrong, that Tompkins actually was trying to jump on the train when he was struck by that protrusion.

Posted by Howard Wasserman on May 23, 2019 at 11:57 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)